November 2022 - Parks & Recreation - 32

LAW REVIEW
roads within Jackson Park, which
would not require federal approval.
However, to accommodate the
resulting effect on traffic, the court
noted " the Chicago Department of
Transportation has proposed using
federal funding to build or improve
other roads, bike paths, and
pedestrian walkways in the park. "
According to the court, this use of
federal highway dollars to build
such replacement infrastructure
would give rise to the approval requirement
under Section 4(f) of the
Department of Transportation Act
of 1966. 49 U.S.C. § 303.
As cited by the court, Section 4(f)
permits the Secretary of Transportation,
through the Federal Highway
Administration (FHWA), to
approve federally funded transportation
projects that have an impact
on public parks or historic sites, so
long as " (1) there is no prudent and
feasible
land; and (2) the program or project
includes all possible planning to
minimize harm to the park resulting
from the use. "
The federal appeals court acknowledged
the Center proposal
implicated four properties protected
by Section 4(f), including Jackson
Park itself. In the opinion of
the court, a " comprehensive analysis "
by the FHWA had determined
" there was no feasible and prudent
alternative to using Section 4(f)
properties for new transportation
infrastructure, which was
needed
to substitute for the roads that
would be eliminated. "
After considering nine alternatives
to minimizing the negative
impacts of the affected parks and
historic sites, as noted by the court,
the FWHA had selected an alternative
that would " meet the project's
goals of accommodating traffic
changes and improving pedestrian
and bike access to Jackson Park. "
In response, Protect Our Parks reiterated
its general claim that the
federal agencies should have considered
locations for the Center
outside Jackson Park. "
The federal appeals court
found this Section 4(f) argument
failed, applying the same reasoning
in which it had rejected
a similar alternate location argument
under NEPA:
No federal law prohibited the
alternative to using that
City from building the Center in
Jackson Park and closing roadways
in connection with the project.
Entities that proceed on their
own dime need not meet conditions
for federal assistance or
approval. Because the Highway
Administration could not have
compelled the City to locate the
Center at a different site, it was
neither arbitrary nor capricious for
that agency to take the City's decision
to build the Center in Jackson
Park as a given - not to mention
the fact that choosing a site for and
building the Center is not a transportation
project.
UPARR Review
The federal
appeals
court
also
considered whether the review
by NPS had complied with the
UPARR Act. 54 U.S.C. §§ 200501511.
As described by the court, the
UPARR Act is a grant program
enacted in 1978 to provide federal
funds
to
to
improve urban
local governments
and
parks
recreational facilities. Further, as
cited by the court, the UPARR
Act requires that any community
that received a UPARR grant
must maintain that land for public
32 Parks & Recreation | NOVEMBER 2 0 22 | PARK S ANDRECRE AT ION . OR G
recreational
use,
unless
NPS
approves converting the space for
another purpose.
In this case, Chicago had received
UPARR grants to rehabilitate
Jackson Park in the 1980s. Because
Chicago wanted to dedicate
about 10 acres of parkland to nonrecreational
space to make room
for the Obama Center's buildings
and related transportation
improvements,
the City sought NPS's
approval of the following partial
UPARR conversion:
[T]he City proposed replacParks
ing
the lost parkland by turning
property on the Midway Plaisance
between Stony Island Avenue
to the east, and the Metra
Electric Railway to the west, into
public recreational space. The
replacement parkland borders
(and effectively extends) Jackson
Park's western border.
Under UPARR, Protect Our
had again claimed NPS
should have considered alternative
locations for the Center. As
cited by the federal appeals court,
UPARR regulations required NPS
to consider whether a proposal to
convert parkland supported by a
UPARR grant evaluated " all practical
alternatives to the proposed
conversion. " 36 C.F.R. § 72.72(b)
(1). That being said, the federal
appeals court noted UPARR regulations
would require NPS to approve
a proposed conversion if:
(1) the conversion aligns with
a local park-recovery action program,
and (2) steps are taken to ensure
that the community has " adequate
recreation properties and
opportunities of reasonably equivalent
location and usefulness. "
Under the City's plan, the federal
appeals court found " the new
November 2022 - Parks & Recreation

Table of Contents for the Digital Edition of November 2022 - Parks & Recreation
